Victim Impact Statements and Ancillary Harm - Response Systems to

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Victim Impact Statements and Ancillary Harm:
The American Perspective
By Paul G. Cassell* and Edna Erez**
A recent thoughtful article by Julian V. Roberts and Marie Manikis in this
journal argues that the concept of “ancillary harm” explains the utility of victim
impact statements at sentencing.1 Roberts and Manikis draw on a recent decision
from the Quebec Court of Appeal: R. c. Cook.2 They contend that the appellate
court’s decision to affirm a trial judge’s use of victim impact evidence fits comfort-
ably within retributive principles of punishment because such impact statements
helped the judge assess the harm caused by a crime. One of the harms a sentencer
must consider, they suggest, is foreseeable harm caused to a victim’s family mem-
ber and others—“ancillary harm”—for which a defendant is properly held ac-
countable. They also conclude that in Canada victims should have a right to present
their impact statement not merely in writing but also orally to the sentencing judge.
At the same time, however, Roberts and Manikis believe that because a victim im-
pact statement may lengthen the defendant’s sentence, a defendant should have a
right to cross-examine any victim delivering an impact statement.
In this response, we try to bring an American perspective to bear on these
important issues. We find much in the American crime victims’ literature and de-
cided court decisions to support many of Roberts and Manikis’ general conclu-
sions. We first draw on criminological and victimological literature, which bolsters
the Robert-Manikis thesis that ancillary harm is properly considered at sentencing.
Second, we provide a concrete illustration from a well-known American case of the
proper use of victim impact evidence, including evidence of ancillary harm: victim
impact evidence from the recent sentencing of Bernard Madoff for a massive fraud.
Third, we turn to American jurisprudence on the scope of victim impact evidence.
American cases make clear that a trial judge may properly consider both direct and
ancillary harms from a crime in imposing sentence and that victim impact state-
ments are an appropriate means for collecting information about such harms.
Fourth, we find that American principles on victims having a right to deliver an
impact statement orally are congruent with the principles that Robert-Manikis iden-
tify as applicable in Canada. Fifth and finally, we raise some questions about the
* Ronald N. Boyce Presidential Professor of Criminal Law, S.J. Quinney College of Law
at the University of Utah. I very much appreciate the research assistance of Alison
Wilkinson and the National Crime Victim Law Institute in preparing this article.
** Professor of Criminology, Law, and Justice, University of Illinois at Chicago.
1 J.V. Roberts and M. Manikis, “Victim Impact Statements at Sentencing: The Rele-
vance of Ancillary Harm” (2010) 15 Can. Crim. L. Rev. at 1.
2 2009 QCCA 2423, 2009 CarswellQue 12692, 250 C.C.C. (3d) 248, 71 C.R. (6th) 369;
leave to appeal refused 2010 CarswellQue 5650, 2010 CarswellQue 5651 (S.C.C.).
Electronic copy available at: http://ssrn.com/abstract=1838731
150 CANADIAN CRIMINAL LAW REVIEW [15 C.C.L.R.]
transferability to America of idea that defendants should be able to cross-examine
victims giving victim impact statements. Whatever the merits of that position may
be under Canadian law or related common law, it would not stand on firm footing
under American legal principles or public policy concerns.
1. ANCILLARY HARM AS A PROPER FACTOR AT
SENTENCING: INSIGHTS FROM CRIMINOLOGY AND
VICTIMOLOGY
(a) “Primary” Victims and “Ancillary” Harm
Any discussion of victim impact statements raises an initial question of who is
the “victim” that might present such a statement. Such issues have been discussed
in American criminological and victimological circles for some time. A review of
American criminal law shows that definitions of victims and victimizations are dy-
namic, being influenced by cultural and socio-political forces, technological ad-
vances, and expanding understanding about the effects of crime.3 Typically under
American victims’ rights statutes, recognized victims are those persons who have
been directly harmed by commission of a criminal offense recognized in the crimi-
nal code.4 Because these definitions revolve around the criminal code, changes in
the code produce changes in who is recognized as a victim. For instance, feminist
campaigns have led to recognition of stalking as an independent criminal offense
(separate from domestic violence, which is often the context in which stalking oc-
curs) thereby creating newly recognized “victims” of the new crime of stalking. As
another example, advances in technology can create new crimes (i.e., cyber crimes)
and thus new victims (i.e., cyber victims).
Increasing understanding of the harmful effects of crime can also lead to ex-
panded recognition of victims. For example, as psychological knowledge about the
psychic harm sustained by first responders witnessing terrorist crimes has devel-
oped—that is, understanding of “compassion fatigue” they suffer in cases of mass
victimization—the willingness of the judicial system to recognize them as victims
has expanded as well. Thus, in the trial of Timothy McVeigh for the April 1995
bombing of the Alfred P. Murrah Federal Building in Oklahoma City, the partici-
pating firefighters who rescued hundreds of victims (many of whom were children)
were given the opportunity to inform the court how the rescue work had affected
them.
The field of victimology differentiates between types of victims or victimiza-
tions by their proximity to the “primary” or “direct” victim.5 Victims are usually
divided into groups, based on tracing ever widening circles of the harms that flow
3 See generally Douglas E. Beloof, Paul G. Cassell and Steven J. Twist, Victims in Crim-
inal Procedure, 2d ed. (Durham, NC: Carolina Academic Press, 2006) at 102–27 (re-
viewing this issue in the context of domestic violence cases).
4 See, e.g., 18 U.S.C. §3771(e) (defining “crime victim” as a person “directly and proxi-
mately harmed as a result of the commission of a Federal offense”). See generally
Beloof et al., supra note 3 at 49–72.
5 The term “recipient” victim is also sometimes used to describe direct victims of a
crime. See Roberts & Manikis, supra note 1 at 10 (discussing R. v. Duffus, 2000 Cars-
wellOnt 4891, 40 C.R. (5th) 350 (S.C.J.)).
Electronic copy available at: http://ssrn.com/abstract=1838731
COMMENT: ANCILLIARY HARM IN AMERICAN LAW 151
from crimes. Primary or direct victims are those directly harmed by a crime: those
who directly suffer physical, psychological, emotional, or financial harm at the
hands of the defendant. For instance, primary victims would include persons who
are murdered, raped, assaulted, or defrauded out of their money.6
Secondary victims—referred to by Roberts and Manikis as “ancillary” vic-
tims—are those occupying the second circle of persons victimized by a crime:
those who indirectly suffer victimization due to their special relationships with di-
rect victims (e.g., close familial, friendship, professional, or other ties to direct vic-
tims). Secondary victims experience harm as a consequence of harm inflicted on a
primary victim. In the Cook case discussed by Roberts and Manikis, for example,
the secondary victims were the family members who suffered emotional harm as
the result of the murder of their loved one. Other examples of secondary victims are
family members and friends who are forced to provide care or otherwise respond to
the needs of primary victims as a consequence of the crime. Research has long
established that primary victims turn first to family and friends before appealing to
agencies and institutional services for help.7 The closer the relationship, the more
intensive is the harm secondary victims experience. For instance, women who take
care of injured intimate partners or children often experience extensive harm as
secondary victims, compared to more distant relatives or friends who are not in
daily contact with the primary victim.8 It is therefore expected, indeed foreseeable,
that crimes committed against victims having close personal relationships would
translate into increased number of victims who will bear the cost, burden and pain
suffered because of the crime. As we will demonstrate later in the article, American
law has recognized the harm inflicted on such family members as within the ambit
of harm from a crime appropriately part of the sentencing calculation.9
6 Direct victims can stem from all types of crimes. In the context of international crime,
for example, direct victims would include those who are enslaved, kidnapped, tortured,
or used as human shields. These examples can obviously be multiplied, with the defini-
tional question being whether the person was directly harmed by the crime’s effects on
them rather than indirectly harmed by effects on someone else.
7 Robert C. Davis, “The Key Contributions of Family, Friends, and Neighbors,” in Rob-
ert C. Davis, Arthur J. Lurigio, & Susan Herman. eds., Victims of Crime, 3rd ed. (Thou-
sand Oaks, CA: Sage Publications, 2007) at 267–76. In some jurisdictions victim im-
pact statements in cases of homicide are called family impact statement. See Paul
Rock, “‘Hearing Victims of Crime:’ The Delivery of Impact Statements as Ritual Be-
haviour in Four London Trials for Murder and Manslaughter,” in Anthony Bottoms &
Julian V. Roberts eds., Hearing the Victim: Adversarial Justice, Crime Victims and the
State (Portland and Devon: Willan Publishing, 2010) at 200-31.
8 The impact of primary victim harm on secondary victims and vice versa is also a func-
tion of cultural factors such as the character of the society/community in which one
lives (e.g. collective or individualistic), which in turn affect the nature of social-famil-
ial relationships within a society.
9 In this article we address only the two circles that have been clearly recognized as
falling within the harm properly considered in American law, namely primary and sec-
ondary (or ancillary) victims. American commentators and jurists are only beginning to
consider a third circle of victimization, which comprises the broader community of
those exposed to the reporting of victimization by mass communication. See, e.g., Ka-
152 CANADIAN CRIMINAL LAW REVIEW [15 C.C.L.R.]
The interrelationship between primary and ancillary harm can have a bearing
on the harm sustained by primary victims, as well as the way in which ancillary
harm evidence is presented in court. Primary victims suffer increased harm from a
crime when their own victimization damages those they are close to when, for ex-
ample, the crime prevents them from being able to provide financial support for
family members. Such circumstances translate into higher level of harm suffered by
the primary victims (who can no longer attend to the needs of their family) as well
as additional harm suffered by the ancillary victims (impoverished financial cir-
cumstance). In court, the harm can be presented through input from the primary
victims, who cannot fulfill their obligations, or through the ancillary victims, who
can no longer depend on the help of primary victims. In short, direct victims’ level
of harm and the scope of the circle of legitimate victims are interrelated.
(b) Victims and Impact Statements at Sentencing
Discussions about the relevance of crime victims’ reports of harm for deter-
mining the quantum of punishment—and whether victims should have the rights
to submit such reports—can be traced back several decades in American crimino-
logical and victimological literature.10 The discussions developed from several
sources. In the criminology literature of the 1970s, American disenchantment with
the idea of rehabilitation as the basis for punishment, along with the realization that
it resulted in significant sentence disparity, led to calls to replace rehabilitative the-
ories of punished with (among others) a “just deserts” philosophy. Speaking
broadly, the just deserts theory (also referred to as retribution) stipulates that pun-
ishment should be proportional to the criminal’s culpable wrongdoing.11 Determin-
tie Long, Note, “Community Input at Sentencing: Victim’s Right or Victim’s Re-
venge?” (1995) 75 B.U. L. Rev. 195 (arguing for community impact statements at sen-
tencing). Cf. Paul H. Robinson, “Should the Victims’ Rights Movement Have
Influence Over Criminal Law Formulation and Adjudication?” (2002) 33 McGeorge L.
Rev. 749 (arguing against individual victim impact statements but in favor of commu-
nity impact statements).
10 For the arguments for and against victim integration in sentencing, see, e.g., Edna Erez,
“Victim Participation in Sentencing: Rhetoric and Reality” (1990) 18 J. Crim. Just. 19;
Edna Erez, “Victim Participation in Sentencing: And the Debate Goes on. ...” (1994)
3 Int’l Rev. of Victimology 17; Edna Erez, “Who’s Afraid of the Big Bad Victim?
Victim Impact Statements as Victim Empowerment and Enhancement of Justice” (July
1999) Crim L. Rev.; Edna Erez, “Victim Voice, Impact statements and Sentencing:
Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial
Proceedings” (Sept.-Oct. 2004) Crim. L. Bulletin at 483–500; Paul G. Cassell,
“Barbarians at the Gates? A Reply to Critics of the Victims’ Rights Amendment” 1999
Utah L. Rev. 479; Paul G. Cassell, “In Defense of Victim Impact Statements” (2009) 6
Ohio St. J. Crim. L. 611.
11 See, e.g., Martin R. Gardner, “The Renaissance of Retribution: An Examination of Do-
ing Justice” 1976 Wis. L. Rev. 781; A. von Hirsch, Doing Justice: The Choice of Pun-
ishments: A Report of the Committee for the Study of Incarceration (New York: Hill
and Wang, 1976); Robinson & Darley, “The Utility of Desert” (1997) 91 Nw. U.L.
Rev. 453; A von Hirsch and A. Shworh, Proportionate Sentencing (Oxford: Oxford
University Press, 2005).
COMMENT: ANCILLIARY HARM IN AMERICAN LAW 153
ing a criminal’s culpability requires consideration of the harm the criminal’s crime
has caused. A common example differentiates between a shooter who kills some-
one and and a shooter whose gun misfires. Even if both shooters have the same
malicious mental state, the shooter who kills will be punished more severely, as a
murderer, while the shooter who did not kill be punished less severely, as an at-
tempted murder.
Victim input, it was argued, could help in providing full details on the extent
of that harm, by revealing the injury that the victim had suffered at the hands of the
defendant. In an influential report, the President’s Task Force on Victims of Crime
contended that “[a] judge cannot evaluate the seriousness of a defendant’s conduct
without knowing how the crime haas burdened the victim.”12 The Task Force
therefore argued for victim impact statements to become a regular feature of the
American criminal justice system.
During the same period, extensive evidence accumulated in the field of vic-
timology on victims’ “secondary victimization.” Victimologists and others docu-
mented victims’ frustration and alienation from a justice system in which they had
no voice, except as witnesses in the trial.13 The later emergence of an American
school of jurists and legal scholars dedicated to understanding the role of the law as
a therapeutic agent—so-called therapeutic jurisprudence or TJ14—helped in so-
lidifying the idea that victims should have a voice in legal proceedings generally
and criminal sentencing proceedings in particular. TJ scholars and practitioners
highlighted the potential of legal practices to affect litigants, both positively and
negatively. They called for legal rules and remedies maximizing therapeutic effects
and minimize adverse impact on litgants, provided that the fundamentals of justice
were preserved. Proponents of the TJ approach noted that crime victim input may
have also positive effect on defendants: a crime victim’s description of the full ex-
tent and types of harms suffered from the defendant’s crime (both anticipated and
unanticipated) may help defendants appreciate the full impact of their acts, thus
promoting rehabilitation and deterrence.
As a result of all these converging influences, legislatures in numerous U.S.
states began passing laws providing victims a voice in sentencing proceedings, al-
lowing victims to allocute at sentencing. Within a short period of time, virtually all
American states had laws or court rules allowing victims to provide victim impact
statements to sentencing judges, either in written or oral form. These laws were
aimed at fulfilling two independent but interrelated goals: first, to inform the court
about the harm sustained by the victim for determining the quantum of punishment
at sentencing; and second, to increase victim welfare during the sentencing process.
Subsequent research on the effects of these laws suggests that victim impact
evidence has had a nuanced effect on sentencing decisions. Interestingly, victim
impact statements have not (as some had feared) dramatically increased defend-
ants’ sentences. For example, a study in California concluded that “[t]he right to
12 President’s Task Force on Victims of Crime, Final Report (1982) at 77.
13 William F. McDonald, “Towards a Bicentennial Revolution in Criminal Justice: The
Return of the Victim” (1976) 13 Am. Crim. L. Rev. 649.
14 D. B. Wexler, Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Durham,
NC: Carolina Academic Press, 1990).
154 CANADIAN CRIMINAL LAW REVIEW [15 C.C.L.R.]
allocution at sentencing has had little net effect ... on sentences in general.”15 A
study in New York similarly reported “no support for those who argue against [vic-
tim impact] statements on the grounds that their use places defendants in jeop-
ardy.”16 Indeed, in a few cases, victim impact evidence has reduced sentence sever-
ity by showing than the harm of the crime was less substantial that argued by the
prosecution.17 One of us reviewed all of the available evidence in this country and
elsewhere, and concluded that “sentence severity has not increased following the
passage of [victim impact] legislation.”18
Even though victim impact statements have not caused a detectable, system-
wide increase in sentence severity, in individual cases impact statements can affect
outcomes. Indeed, as we will show shortly in our discussion of the Madoff case,
individual judges have sometimes imposed longer prison sentences as the result of
victim impact statements. Moreover, apart from incarceration, victim impact state-
ments has been associated with other changes in sentences, such as “affect[ing] the
conditions of probation, causing the judge to order anger-management treatment,
drug and alcohol supervision, domestic violence counseling, or such.”19 In other
words, victim impact statements have a nuanced effect on sentencing—an effect
that in our view is best described as helping judges tailor individual sentences to
the particular circumstances of a case.
Apart from any ultimate effect on the sentence, victim impact statements also
appear to have had noteworthy beneficial effects on the victims delivering them.
The evidence shows that crime victims, particularly those harmed by serious
crimes, feel a need to tell decisionmakers how the crime has hurt them.20 Research
15 Edwin Villmoare and Virginia N. Neto, National Institute Of Justice, U.S. Dept of Jus-
tice, Executive Summary, Victim Appearances at Sentencing Hearings Under the Cali-
fornia Victims’ Bill of Rights (1987) at 61 [hereinafter NIJ Sentencing Study].
16 Robert C. Davis and Barbara E. Smith, “The Effects of Victim Impact Statements on
Sentencing Decisions: A Test in an Urban Setting” (1994) 11 Just. Q. 453, 466; accord.
Robert C. Davis et al., Victim Impact Statements: Their Effects on Court Outcomes and
Victim Satisfaction in New York, 1988–1990 (New York City, NY: Victim Services
Agency, 1990) at 68 (concluding that the result of the study “lend[s] support to advo-
cates of victim impact statements” since no evidence indicates that these statements
“put defendants in jeopardy [or] result in harsher sentences”).
17 See Edna Erez and Linda Rogers, “Victim Impact Statements and Sentencing Out-
comes and Processes: The Perspectives of Legal Professionals” (1999) 39 Brit. J. of
Criminology 216. Roberts and Marikis seem to suggest that victim input has potential
of aggravating the sentence, but not reducing it. Some skillful defense advocates have
recognized, however, that victim information can sometimes be a mitigating factor at
sentencing. See Benji McMurray, “The Mitigating Power of a Victim Focus at Sen-
tencing” (2006) 19 Fed. Sent’g Rep. 125 at 127.
18 Erez (1999), supra note 10 at 545, 548; see also Erez (1994), supra note 10 at 22.
19 Amy Propen and Mary Lay Schuster, “Making Academic Work Advocacy Work:
Technologies of Power in the Public Arena” (2008) 22 J. Bus. & Tech. Comm. 299 at
315.
20 S. Szmania and M. Gracyalny, “Addressing the Court, the Offender and the Commu-
nity: A Communiction Analysis of Victim Impact Statements in a Non-Capital Sen-
tencing Hearing” (2006) Int’l Rev. of Criminology 13 at 231–49; Julian V. Roberts and
COMMENT: ANCILLIARY HARM IN AMERICAN LAW 155
has documented that victims who choose to participate (directly or indirectly21)
tend to be those who sustained serious harm and that having the opportunity to
present a victim impact statement is associated with greater satisfaction with the
ultimate outcome of the case.22
Granted, not all victims wish to discuss their harm or convey their feelings to
the judge or to the offender who is present at sentencing. Indeed, the limited partic-
ipation of victims has been used by some legal scholars as an argument against
allowing victim input, suggesting that when only a small portion of victims provide
input, inequality or presumed sentence disparity ensue.23 Other persistent objec-
tions to victim input revolve around fears that victim voice would contaminate pro-
ceedings with “sloppy emotional stuff” and negatively affect court outcomes.24 If
indeed, some have argued, the reason for allowing victim input is victim well-be-
ing, then victims should exercise their right to speak after the court has determined
the sentence.25
In our view, such arguments against victim input in sentencing hearings ignore
the relevance of the details in a victim impact statement for a judge’s appreciation
of the extent of harm sustained directly and indirectly by victims as well as the
therapeutic benefits of victims conveying their harm directly to decisionmakers at a
time when the information is meaningful and relevant (i.e., when it can make a
difference at sentencing).26 The Bernard Madoff case discussed below illustrates
this interrelation between primary and ancillary harm, and also demonstrates the
functions that victim input can play not only for the court but also for crime vic-
tims. Because most of the persisting objections to victim input in the U.S. focus on
capital murder cases,27 it also useful to step outside of that relatively unusual type
Edna Erez, “Communication in Sentencing: Exploring the Expressive Function of Vic-
tim Impact Statements” (2004) 10 Int’l Rev. of Victimology 223.
21 In many states, victims can provide victim impact evidence indirectly to the judge, by
passing along information to a probation officer who includes it in the pre-sentence
report prepared for the judge.
22 Ellen K. Alexander and Janice Harris Lord, Impact Statements: A Victim’s Right to
Speak, A Nation’s Responsibility to Listen (Arlington, VA: National Center for Victims
of Crime, 1994); Erez and Rogers, supra note 17.
23 Andrew Sanders and Imogen Jones, “The Victim in Court,” in Sandra Walklate ed.,
Handbook of Victims and Victimology (Portland and Devon: Willan Publishing, 2007)
at 282-308; Markus Dirk Dubber, Victims in the War on Crime: The Use and Abuse of
Victims’ Rights (New York: New York University Press, 2002).
24 Susan Bandes, “Empathy, Narrative and Victim Impact Statements” (1996) 63 U. Chi.
L. Rev. 361; Susan Bandes, “Victims, “Closure,” and the Sociology of Emotion”
(2009) 72 Law & Contemp. Probs. 1; Carolyn Hoyle, “Empowerment through Emo-
tion: The Use and Abuse of Victim Impact Evidence,” in Edna Erez, Michael Kilching,
and Joanne Wemmers (eds.), Therapeutic Jurisprudence and Victim Participation in
Justice: International Perspectives (Durham, NC: Carolina Academic Press, 2011).
25 Hoyle, supra note 24.
26 American law provides victims the opportunity to convey the harm in their own words
and directly to the judge. In some countries (e.g. England) victim input is presented
(and possibly rewritten) by some mediating body such as the prosecution.
27 See, e.g., Bandes (1996) and Bandes (2009), supra note 24.
156 CANADIAN CRIMINAL LAW REVIEW [15 C.C.L.R.]
of crime to consider the role of victim impact evidence for a a crime that that in-
volves financial victimization. We turn, then, to the Madoff case.
2. AN ILLUSTRATION OF VICTIM IMPACT STATEMENTS AND
ANCILLARY HARM: THE BERNARD MADOFF CASE
Just as Roberts and Manikis use a Canadian case as the springboard of their
discussion, we believe that reviewing a recent and prominent American case may
be helpful. The case we will discuss is United States v. Madoff, a financial crime—
, one of the largest financial crimes in American history.28 At sentencing the judge
made considerable use of the victim impact statements that were provided to him,
including statements that provided information about the ancillary harm that re-
sulted from Madoff’s fraud. This case provides a good illustration of proper uses of
victim impact evidence to determine a sentence proportionate to the offense.
Bernard Madoff ran a $60 billion-dollar Ponzi scheme for more than twenty
years, causing thousands of investors to lose large sums, in many instances their
life savings. Because thousands of victims lost money to Madoff’s fraud, the prose-
cutors developed a website to provide information about the case to the victims.29
The website also explained to victims the procedure for providing victim impact
statements in writing. More than one hundred wrote letters or e-mails to the presid-
ing judge in the case, Judge Danny Chin.30 During Madoff’s sentencing hearing,
ten victims spoke: eight of whom had also submitted written statements and two of
whom had not. The victims had various reasons for speaking. For example, one of
the victims said she felt particularly vulnerable because she had no children or
other substantial social connections and Madoff’s crime left her with no money left
to live on. Another victim asked to speak because she knew Madoff personally and
thought the defendant would not be able to ignore what she had to tell him.31
In describing the harm they suffered from the crime, the primary victims testi-
fied about the enormous shock of discovering that what they thought was a safe
28 United States v. Madoff (April 20, 2009), Doc. 09 Cr. 213(DC) (U.S. Dist. Ct. S.D.
N.Y.).
29 Online: <http://www.justice.gov/usao/nys/madoff.html>. While federal law generally
guarantees victims of crime the right to individualized notice of court hearings, the law
also provides for a “reasonable procedure” to be used in cases involving large numbers
of victims. 18 U.S.C. §3771(d)(2). Thus, the website was used rather than mailing indi-
vidual notices to victims.
30 The letters can be conveniently found online:
<http://www.cbsnews.com/htdocs/pdf/Madoff—Victim_Impact_Statements.pdf>. To
reduce the number of footnotes in this article, we have not footnoted each individual
quotation from a letter.
31 One letter was received from an employee of Madoff’s firm who lost his job and bene-
fits after two decades of working for it. Another letter was written by a person who
noted that he did not invest money with Madoff, but as a citizen was nonetheless en-
raged by the scheme, the negligence of the Securities and Exchange Commission
(SEC), and the devastating loss that the scheme caused to so many investors. Several
letters were comprised of copies of requests addressed to U.S. Senators about the need
to enact legislation so that indirect victims of frauds would also be compensated by the
Securities Investor Protection Corporation (SIPC).
COMMENT: ANCILLIARY HARM IN AMERICAN LAW 157
investment turned out to be a fraud and that they had lost their hard-earned life
savings as a consequence. Many referred to it as a continuous nightmare. They felt
robbed, raped, violated, or “assaulted with intangible weapon.” They described in
detail how they lost their “freedom to do things,” or to “go out or travel.” They also
talked about how the crime caused them to lose trust in people, in the system that
was supposed to protect them, and in the government that assured them that their
investments were safe. They revealed the physical and mental symptoms they suf-
fered because of the crime: depression, stress, despair, anxiety, resultant illnesses,
or aggravation of existing ones, and an inability to get up in the morning to face
their new impoverished existence. Some stated they had lost weight, did not want
to go out of the house, and lost any interest in life. Several victims equated their
lives with being in prison. Many of the victims described themselves as elderly or
sick, without family or other support networks. They talked about being unable to
afford the medicine they needed, new reading glasses, or airfare to present their
harm in court. For several victims, the loss of ability to donate money to charitable
organizations or to help the needy was highly painful. They all talked about bru-
tally shattered plans for their own lives.
But the victims described not only the consequences for themselves, but also
the devastating impact Madoff’s crime had on the significant others in their lives—
the ancillary victims. The harm suffered by these ancillary victims—children,
grandchildren, and other family members of the primary victims—was most often
presented by the primary victims as part of their own suffering. Indeed, much of the
suffering the primary victims described stemmed from the harm they sustained be-
cause of the significant others in their lives. Many primary victims presented as
part of their pain their inability to fulfill various parental expectations or family
obligations toward relatives: they could no longer pay for their children’s college
education, airfare to visit their grandchildren and be part of their lives, or to help
ailing parents or elderly siblings who relied on their financial assistance. Some de-
scribed how they had to sell their homes and move in with their children, thereby
victimizing them. They also felt ashamed and embarrassed that they were trans-
formed from providers for their offspring into their dependents.
In some cases, the ancillary victims themselves wrote letters in which they
detailed how Madoff’s fraudulent schemes hurt them. One letter was written by a
son of a couple who had lost their life savings; he lamented that his parents could
no longer afford paying for the special needs of his disabled twin brother and ex-
pressed his pain that his brother would have to be moved out of his parents’ home.
Others wrote about how the loss of their parents’ savings forced them to change
long-standing plans concerning college, postpone their education, or even to leave
school altogether.
Madoff’s victims also used their victim impact statements for purposes other
than describing their harm, including expressing their feelings toward the defendant
and his relatives, as well as various authorities or regulating agencies.32 Some ex-
pressed their anger with Madoff for continuously deceiving them with bogus
32 The use of victim impact statements to convey messages to different audiences has
been previously noted in victimological analyses of the content of these statements.
See, e.g., Szmania and Gracyalny, supra note 20; Roberts and Erez, supra note 20.
158 CANADIAN CRIMINAL LAW REVIEW [15 C.C.L.R.]
monthly earning statements. Several letters included remarks addressed to the de-
fendant (directly or in the third person) abhorring his heinous acts, arrogance, lack
of remorse, and absence of any genuine compassion toward his victims. Some vic-
tims reported being flabbergasted by the claims Madoff’s wife Ruth made to the
scant remaining funds, or they expressed surprise that Madoff was allowed to await
his sentence in his plush apartment in New York while they had lost their homes.
Those who knew Madoff personally elaborated on the sense of betrayal they felt
from being deceived for decades.
For many victims, the victim impact statements provided an opportunity to
challenge what they perceived as incorrect images, promoted by the media, that
portrayed Madoff’s victims as rich, socialites, or greedy. Many of the writers pre-
sented themselves as ordinary citizens who played by the rules and lived within (or
below) their means so that they could save for their retirement. They were hard-
working wage earners who deposited their life saving with Madoff based on what
they thought was sound advice they received from friends, family, or investment
professionals. They described how they paid taxes for years on what Madoff had
led them to believe was their income, when in reality there was nothing there.
Many emphasized that they were not affluent but came from modest economic
backgrounds and frugal lifestyles. At the same time, many commented on Madoff’s
deceptive practices that allowed him, his family, and his friends to live so lavishly
at their expense. Expressing displeasure with the government agencies that failed to
protect them, they requested that laws be passed to compensate indirect investors or
to expedite the insurance payments that they were due from Securities Investor Pro-
tection Corporation.
Several victims commented that they were disappointed that Madoff showed
no remorse or genuine repentance and that his behaviour caused them to lose faith
in human nature. Many victims requested the court to impose a penalty proportion-
ate to the harm Madoff caused to so many people, which in their view meant that
he should spend the rest of his life in prison.
At the sentencing hearing, the judge noted that he had read the letters and that
he agreed with many of the sentiments expressed by the victims.33 He also used
victim allocution for various sentencing purposes, to determine the extent of harm
from Madoff’s fraud, to rebut the defense plea for leniency, and ultimately to deter-
mine the sentence proportionate to the crime. The judge flatly rejected the defense
contention that the letters reflected nothing more than mob vengeance. According
to Judge Chin, just because many of the letters sounded similar themes did not
mean that the victims acted together as a mob. He agreed that “a just and propor-
tionate sentence must be determined objectively, and without hysteria or undue
emotion,”34 and went on to discuss the various factors he was taking into consider-
33 A full transcript of the hearing can be found online:
<http://www.justice.gov/usao/nys/madoff/20090629sentencingtranscriptcorrected.pdf>.
34 This idea that a sentencing court engages in dispassionate or objective determination of
sentence—or in “dry-eyed justice” as one recent Canadian case put it, R. v. Steeves,
2010 NBCA 57, 2010 CarswellNB 378, 2010 CarswellNB 379—and practices a
“clinical approach,” one that is devoid of emotion, is a common theme sounded by
judges in cases where emotions seem high. See Erez and Rogers, supra note 17.